Chapter 15

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Business Bankruptcy Issues Recent Developments

New Developments In The Cayman Islands Hedge Fund Chapter 15 Case

In a post earlier this month, I reported on the August 30, 2007 decision by Judge Burton R. Lifland of the U.S. Bankruptcy Court for the Southern District of New York denying Chapter 15 recognition to foreign proceedings pending in the Cayman Islands for two Bear Stearns hedge funds. In the August decision (available here), the Bankruptcy Court held that although the two hedge funds were organized under the laws of the Cayman Islands, their business operations were in New York and not in the Cayman Islands, which essentially served as a "letter box."

The Involuntary Bankruptcy Option. After denying recognition, the Bankruptcy Court indicated that an alternative path would be for the foreign representatives to file an involuntary bankruptcy petition. The Bankruptcy Court noted that Section 303(b)(4) of the Bankruptcy Code, permitting a foreign representative to file an involuntary bankruptcy petition, had not been repealed when Chapter 15 was enacted. The foreign representatives were given time to pursue that option.

An Amended Opinion To Note An Inconsistency. A few days later, on September 5, 2007, Judge Lifland issued an amended opinion (available here) adding an interesting footnote on that very issue. In it, he suggested that the failure to repeal the involuntary bankruptcy provision may have been a mistake. Here’s the new footnote 15 to the amended opinion:

It would appear that the failure to repeal section 303(b)(4) along with section 304 may be a drafting error in view of the newly enacted section 1511(b) which likewise addresses the commencement of a case under sections 301 and 303. The inconsistencies of the two statutes have not been conformed.

The footnote did not change the decision but it raises a question whether the filing of an involuntary case after denial of Chapter 15 recognition is consistent with the intent of Chapter 15’s changes to the Bankruptcy Code. If the failure to repeal that section was truly a mistake, fixing it would mean that without Chapter 15 recognition, a foreign representative couldn’t obtain any bankruptcy protection in the United States.

The Foreign Representatives File A Motion For Stay Pending Appeal. On September 21, 2007, the foreign representatives for the two hedge funds filed an appeal from the decision and also a motion for stay pending appeal (click on link for a copy). The motion sought to have the order dissolving the stay of litigation against the two funds itself stayed until the appeal is resolved. In addition to arguing that the Bankruptcy Court’s decision was in error, the motion stated that the involuntary bankruptcy option was too expensive and could subject the hedge funds to competing main proceedings, one in the United States and one in the Cayman Islands, each with their own legal obligations.

Conditional Stay Granted Pending Appeal. According to media reports, at a hearing held on September 24, 2007, the Bankruptcy Court granted the motion to stay subject to the return to the United States of funds that had been transferred to the Cayman Islands in connection with the foreign proceedings. Stay tuned.

Business Bankruptcy Issues Recent Developments

Lack Of Recognition: New Case Shows That Chapter 15 International Bankruptcy Protection Isn’t Automatic

On August 30, 2007, in twin decisions in recent cases involving two Bear Stearns hedge funds (available here and here), Judge Burton R. Lifland of the U.S. Bankruptcy Court for the Southern District of New York made clear that recognizing a foreign insolvency proceeding in a Chapter 15 cross-border bankruptcy case is not to be "rubber stamped by the courts."  The decision is of particular interest because Judge Lifland was one of the authors of Chapter 15 and the Model Law on Cross-Border Insolvency on which it is based.

The Bankruptcy Court’s Ruling. In a nutshell, the Bankruptcy Court held that although the two hedge funds were organized under the laws of the Cayman Islands, their business operations were in New York and not in the Cayman Islands. As such, the Bankruptcy Court would not recognize the Cayman Islands insolvency proceeding as either a "foreign main proceeding" or a "foreign nonmain proceeding." If you’re unfamiliar with this terminology, keep reading for an overview of Chapter 15 and more details on the decision.

A Chapter 15 Refresher. On October 17, 2005, as part of the Bankruptcy Abuse Prevention and Consumer Protection Act (known as BAPCPA), a new Chapter 15 of the Bankruptcy Code went into effect governing ancillary and other cross-border cases. (For those already familiar with ancillary proceedings, Section 304 of the Bankruptcy Code, which previously governed those proceedings, was repealed although many of its concepts were retained in Chapter 15.)

  • The main purpose of enacting Chapter 15 was to incorporate the Model Law on Cross-Border Insolvency as part of the Bankruptcy Code. 11 U.S.C. § 1501(a). My partner Adam Rogoff, who has significant experience with international insolvency matters, has prepared a very helpful chart comparing Chapter 15 and the Model Law’s provisions.
  • Chapter 15 is used principally by representatives of, or creditors in, foreign insolvency proceedings to obtain assistance in the United States, by a debtor or others seeking to obtain assistance in a foreign country regarding a bankruptcy case in the United States, or when both a foreign proceeding and a bankruptcy case in the United States are pending with respect to the same debtor. 11 U.S.C. § 1501(b). 

Several important terms involving the different types of foreign insolvency proceedings are key to understanding the scope of Chapter 15 and Judge Lifland’s ruling. 

  • A “foreign proceeding” means “a collective judicial or administrative proceeding in a foreign country, including an interim proceeding, under a law relating to insolvency or adjustment of debts in which proceeding the assets and affairs of the debtor are subject to control or supervision by a foreign court, for the purpose of reorganization or liquidation.” 11 U.S.C. § 101(23). 
  • For purposes of Chapter 15, “debtor” means “an entity that is the subject of a foreign proceeding.” 11 U.S.C. § 1502(1). 
  • A "foreign main proceeding" means a foreign proceeding pending in the country where the debtor has the center of its main interests which, in the absence of contrary evidence, is presumed to be the location of the debtor’s registered office. 11 U.S.C. §§ 1502(4) and 1516(c). 
  • A "foreign nonmain proceeding" means a foreign proceeding, other than a foreign main proceeding, pending in a country in which the debtor has an “establishment,” defined as a place of operations where the debtor carries out a nontransitory economic activity. 11 U.S.C. §§ 1502(2) and (4). 

Chapter 15’s basic procedure is straightforward. A case is commenced when a foreign representative, often a liquidator or provisional liquidator, files a petition for recognition of a foreign proceeding. 11 U.S.C. §§ 1504 and 1515(a). If properly filed, the bankruptcy court is entitled to presume that the facts stated in the petition are correct and the attached documents are authentic. 11 U.S.C. §§ 1516(a) and (b). As long as recognition would not be manifestly contrary to the public policy of the United States, the court must enter an order recognizing the foreign proceeding (here’s an example order). 11 U.S.C. §§ 1506 and 1517(a). 

Evidence Trumps Presumptions. With all this in mind, Judge Lifland held that the Cayman Islands proceeding could not be considered either a "foreign main" or a "foreign nonmain" proceeding. Despite Chapter 15’s presumption that the registered office or place of incorporation, here the Cayman Islands, would be a debtor’s "center of main interests" (known in the trade as the "COMI"), other evidence showed that the actual center of their activity was in New York. This, Judge Lifland held, precluded recognition of the Cayman Island proceeding as a foreign main proceeding. Also, without a true business presence there, the Bankruptcy Court could not conclude that the Cayman Islands was a place where the funds had "nontransitory economic activity," precluding foreign nonmain recognition. Judge Lifland held that even in the absence of objection, Chapter 15 places the burden of proof on these issues on the foreign representatives. Here, the facts in the petition and related papers showed that New York, and not the Cayman Islands, was the COMI for the funds.

Is Non-Recognition The End Of The Road? One of the most interesting aspects of Judge Lifland’s decision is the door he left open to the foreign representatives. Although the two hedge funds could not get protection under Chapter 15 of the Bankruptcy Code based on their filing in the Cayman Islands, they have the option of filing an involuntary Chapter 7 or Chapter 11 bankruptcy case in the United States.

  • Although Section 304 of the Bankruptcy Code, the old "ancillary proceedings" section, was repealed when Chapter 15 was enacted, Section 303 — and the ability of foreign representatives to file an involuntary Chapter 7 or Chapter 11 bankruptcy case — was not repealed.
  • Judge Lifland noted that Section 303(b)(4) of the Bankruptcy Code allows a foreign representative, such as the provisional liquidators appointed by the Cayman Islands court, to file an involuntary bankruptcy petition against the hedge funds and obtain bankruptcy protection in this manner.

Additional Reading In The Blogs. For more on the case, be sure to read Jordan Bublick’s informative post on his Miami Florida Bankruptcy Law blog and Chris Laughton’s commentary on his Insolvency Blog out of the UK. For the hedge fund industry’s perspective, you may find this post on the Hedgefunds Weblog of interest.

A Few Observations. With many offshore investment funds operating in the United States, Chapter 15 filings may become even more commonplace in the future, especially if we continue to encounter the kind of turbulence recently seen in the financial markets. Although the enactment of Chapter 15 made it easier for foreign representatives to get bankruptcy protection in the United States, the process is not automatic. As Judge Lifland’s decision shows, bankruptcy courts will scrutinize the facts — even in essentially unopposed cases — before agreeing to formally recognize a foreign proceeding. Without such recognition, foreign representatives will have to fall back on the more cumbersome involuntary bankruptcy process or find themselves with no U.S. bankruptcy protection at all.

Business Bankruptcy Issues Recent Developments

English Translation Of China’s New Enterprise Bankruptcy Law Is Now Available

On June 1, 2007, China’s new Enterprise Bankruptcy Law took effect. Years in the drafting, it represents a major change from the prior law. If implemented consistently throughout China, the new law may give foreign creditors more protection than they have received in the past. 

Covering twelve chapters and 136 articles, the new law is designed to create a framework for business insolvencies in China. Among the key features are a court-appointed administrator, a creditors’ meeting and creditors’ committee, voluntary and creditor-initiated bankruptcy proceedings, and reorganization, liquidator, and settlement mechanisms. For more information on the new law, you may find this article from Asia Times Online of interest as well as this discussion by the King & Wood law firm in China. The Bankruptcy Litigation Blog has a recent post that includes an introductory discussion on the topic, as well as several useful links.

In conjunction with its China Law Digest, China-based Lehman, Lee & Xu has prepared a very helpful English translation of the Enterprise Bankruptcy Law of the People’s Republic of China. They have also made available a PDF version of the unofficial translation. Among the firm’s other resources is the China Blawg, a blog covering Chinese legal topics and related information.

China has not yet adopted the Model Law on Cross-Border Insolvency, which the United States enacted as Chapter 15 of the U.S. Bankruptcy Code, but this new Enterprise Bankruptcy Law appears to be moving China more toward the mainstream of international insolvency legal systems.

Business Bankruptcy Issues Recent Developments

Chapter 15: The Bankruptcy Code’s New Cross-Border Insolvency Rules

Chris Laughton, a UK insolvency practitioner and publisher of InsolvencyBlog.com, has a number of recent posts on the adoption in the UK of the Model Law on Cross-Border Insolvency (“Model Law”), a 1997 effort by the United Nations Commission on International Trade Law (“UNCITRAL”). That got me thinking that I should post something on the recent changes to the U.S. Bankruptcy Code on cross-border insolvencies.

Chapter What? On October 17, 2005, as part of the Bankruptcy Abuse Prevention and Consumer Protection Act (known as "BAPCPA"), a new Chapter 15 of the Bankruptcy Code went into effect governing ancillary and other cross-border cases. (For those already familiar with ancillary proceedings, Section 304 of the Bankruptcy Code, which previously governed those proceedings, was repealed although many of its concepts have been retained in Chapter 15.)

Where Did Chapter 15 Come From? The main purpose of enacting Chapter 15 was to incorporate the Model Law as part of the Bankruptcy Code. 11 U.S.C. § 1501(a). My partner Adam Rogoff, who has had significant experience with international insolvency matters, has prepared a very helpful chart comparing Chapter 15 and the Model Law’s provisions. Also, because Chapter 15 so closely follows the Model Law, the Legislative Guide to Enactment of the UNCITRAL Model Law on Cross-Border Insolvency, prepared by the Model Law’s authors, is one of the most helpful guides to understanding the meaning of Chapter 15’s provisions.

Given that Chapter 15 is such a creature of statute, I’ve included more citations to the Bankruptcy Code than usual in this post. They are all in the format 11 U.S.C. § ___, which refers to Title 11 of the United States Code (the title of U.S. law that sets out the Bankruptcy Code) and then a particular section number. 

Who Uses Chapter 15? Chapter 15 is used principally by representatives of or creditors in foreign insolvency proceedings to obtain assistance in the United States, by a debtor or others seeking to obtain assistance in a foreign country regarding a bankruptcy case in the United States, or when both a foreign proceeding and a bankruptcy case in the United States are pending with respect to the same debtor. 11 U.S.C. § 1501(b). 

Learning A "Foreign" Language. Several important terms involving different types of foreign proceedings are key to understanding the scope of Chapter 15. 

  • A “foreign proceeding” means “a collective judicial or administrative proceeding in a foreign country, including an interim proceeding, under a law relating to insolvency or adjustment of debts in which proceeding the assets and affairs of the debtor are subject to control or supervision by a foreign court, for the purpose of reorganization or liquidation.” 11 U.S.C. § 101(23). 
  • For purposes of Chapter 15, “debtor” means “an entity that is the subject of a foreign proceeding.” 11 U.S.C. § 1502(1). 
  • A "foreign main proceeding" means a foreign proceeding pending in the country where the debtor has the center of its main interests which, in the absence of contrary evidence, is presumed to be the location of the debtor’s registered office. 11 U.S.C. §§ 1502(4) and 1516(c). 
  • A "foreign nonmain proceeding" means a foreign proceeding, other than a foreign main proceeding, pending in a country in which the debtor has an “establishment,” defined as a place of operations where the debtor carries out a nontransitory economic activity. 11 U.S.C. §§ 1502(2) and (4). 

Getting Some Recognition:The Chapter 15 Process. Chapter 15’s basic procedure is straightforward. A case is commenced when a foreign representative files a petition for recognition of a foreign proceeding. 11 U.S.C. §§ 1504 and 1515(a). If properly filed, the bankruptcy court is entitled to presume that the facts stated in the petition are correct and the attached documents are authentic. 11 U.S.C. §§ 1516(a) and (b). As long as recognition would not be manifestly contrary to the public policy of the United States, the court must enter an order recognizing the foreign proceeding (here’s an example order). 11 U.S.C. §§ 1506 and 1517(a). 

Formal recognition is the key step that triggers the benefits of Chapter 15. If recognition is granted as a foreign main proceeding, the debtor receives important protections and rights similar to those available to U.S.-based debtors. Chief among these are the automatic stay provisions of Section 1520(a) of the Code, which invoke the automatic stay of Section 362 with respect to the debtor and its property within the territorial jurisdiction of the United States. 11 U.S.C. § 1520(a). Other sections invoked by Section 1520 (including Sections 363, 549, and 552) apply to transfers of interests of the debtor in property within the territorial jurisdiction of the United States. 11 U.S.C. § 1520(a)(2). Unless the court orders otherwise, the foreign representative may also operate the debtor’s business consistent with Section 363 and 552. 11 U.S.C. § 1520(a)(3). 

A Matter Of Discretion. Section 1521 gives the court discretion to grant other appropriate relief at the request of the foreign representative, including in foreign nonmain proceedings which, unlike foreign main proceedings, do not invoke Section 1520’s automatic stay. 11 U.S.C. § 1521(a). Under Section 1521(a), the court may, among other things, stay actions or proceedings concerning the debtor’s assets, rights, obligations or liabilities, stay execution against the debtor’s assets, and suspend the right to transfer or dispose of assets of the debtor. 11 U.S.C. §§ 1521(a)(1), (2), and (3). However, Chapter 15 contains certain limitations on the ability of a court to grant the discretionary relief provided by Section 1521:

  • Relief is available only “where necessary to effectuate the purpose of this chapter and to protect the assets of the debtor or the interests of the creditors.” 11 U.S.C. § 1521(a). 
  • Congress made such relief expressly subject to the “standards, procedures, and limitations applicable to an injunction.” 11 U.S.C. § 1521(e). The court has discretion to make any relief granted subject “to conditions it considers appropriate, including the giving of security or the filing of a bond.” 11 U.S.C. § 1522(b).
  • Section 1507 requires the court, in determining whether to give additional assistance to a foreign representative, to consider “whether such additional assistance, consistent with the principles of comity, will reasonably assure” achievement of five specific objectives retained nearly verbatim from former Section 304(c). 
  • These objectives include “just treatment of all holders of claims,” “protection of claim holders in the United States against prejudice and inconvenience,” “prevention of preferential or fraudulent dispositions of property,” “distributions of proceeds” substantially according to the Bankruptcy Code, and, where appropriate, the opportunity for a fresh start for an individual. 

Over There: Protection For U.S. Creditors And Debtors. The Model Law has been adopted in a number of other countries, including Japan, Mexico, Poland, Romania, South Africa, and the UK. According to this recent post on the InsolvencyBlog.com, foreign creditors (including U.S. creditors) are fully recognized in UK insolvency proceedings. Representatives of U.S. based debtors may also obtain protection in countries that have adopted the Model Law. The European Union, which has not yet adopted the Model Law, has its own cross-border insolvency regulation that applies to all EU countries except Denmark.

Check Your Local Listings. Although Chapter 15 and the Model Law have been designed to help coordinate cross-border bankruptcy and insolvency proceedings, these restructurings and liquidations are complex and often require parties to navigate through multiple country-specific insolvency schemes. If you find yourself involved in a cross-border bankruptcy, whether as a debtor, creditor, or a member of a committee, it’s usually critical to get legal advice from U.S. and appropriate foreign insolvency counsel.